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CALIFORNIA COMPENSATION CASES
Vol. 89, No. 2 February 2024
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In the 1785 poem, To a Mouse , Robert Burns observed that the best...
By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board
The struggle is real. How and when should Workers’ Compensation Judges (WCJs) apply the statute...
By Hon. Robert G. Rassp, Editor-in-Chief, Rassp & Herlick, California Workers’ Compensation Law (LexisNexis)
DISCLAIMER: The opinions expressed in this article are those of the author and are not those of the California Department of Industrial Relations, the Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board. This article is not intended to serve as a legal brief or to provide legal advice and counsel are advised to consult with their own resources in researching specific issues that may arise.
In January 2020, the Workers’ Compensation Appeals Board revamped the WCAB Rules of Practice and Procedure [under Title 8 California Code of Regulations Sections 10300-10999]. Many of the WCAB Rules were renumbered but also new provisions were enacted by the Appeals Board. There was only a handful of seminars presented to the workers’ compensation community after these Rules were enacted and implemented and then the COVID-19 statewide shut-down occurred in March of 2020.
In January 2022, the Workers’ Compensation Appeals Board again amended the WCAB Rules of Practice and Procedure with new provisions that implemented lessons learned during the pandemic, including the ability to conduct virtual hearings. Again, there were no widespread educational programs to review these new Rules and practitioners have remained somewhat in the dark about the revisions to the WCAB Rules.
Embedded in the 2022 revised WCAB Rules of Practice and procedure is the requirement that all parties who appear at a mandatory settlement conference (MSC) must meet and confer prior to the date of the MSC. The Appeals Board did not provide a definition of what it means by requiring parties to “meet and confer” prior to an MSC. So we look at other legal forums to assist us in finding a working definition of “meet and confer” within the context of a California Workers’ Compensation case’s mandatory settlement conference. In order to provide some guidance to parties who appear at an MSC before the WCAB, the specific enabling statute and regulation that implements that statute is appropriate to quote.
Labor Code Section 5502(d)(3) states:
If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute, each party’s proposed permanent disability rating, and listing the exhibits, and disclosing witnesses. Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.
WCAB Rules of Practice and Procedure (2022) Title 8 Cal. Code of Regulations Section 10759(b) implements Labor Code Section 5502(d)(3):
The parties shall meet and confer prior to the mandatory settlement conference and, absent resolution of the dispute(s), the parties shall complete a joint Pre-Trial Conference Statement setting forth the issues and stipulations for trial, witnesses, and a list of exhibits by the close of the mandatory settlement conference. A defendant that has paid benefits shall have a current computer printout of benefits paid available for inspection at every mandatory settlement conference.
While Rule 10759(b) does not provide us with a definition of “meet and confer,” other judicial forums in California give guidance in their respective rules of practice and procedure to workers’ compensation practitioners. There is a commonality of language used in these forums that allow us to implement WCAB Rule 10759(b). However, none of these rules are mandated to apply in a workers’ compensation case.
Meet and Confer in person or by telephone on the following issues:
(3) Identifying facts and issues in the case that are undisputed and may be the subject of a stipulation
(4) Identifying facts and issues in the case that are in dispute
(6) Determining whether settlement is possible
“Meet and confer” or “confer” means to communicate directly and to discuss in good faith the issue(s) required under the particular Rule or Order…The mere sending of a written electronic, or voice mail communication, however, does not satisfy a requirement to “meet and confer” or to “confer.” Rather, this requirement can be satisfied only through direct dialogue and discussion—either in a face to face meeting or in a telephone conversation.
So you can see the common terminology that is pervasive in these other judicial forums. Prior to an MSC before the WCAB, parties need to have a meaningful good faith meet and confer discussion prior to an MSC as follows:
(1) Parties need to agree on the facts along the lines of the Pre-Trial Conference Statement (PTCS)
(2) Parties need to identify the issues that are in dispute and which may require a judicial finding of fact, decision, or order; an
(3) Parties need to try and settle the case or issues pending by having meaningful and practical discussion of settlement of the entire case.
In order to implement Rule 10759(b), all workers’ compensation judges should confirm at an MSC to what extent a good faith meet and confer occurred prior to the date of the MSC. A phone call the morning of an MSC is not in good faith, nor is a one-sided email sent to opposing counsel. WCAB trial judges expect parties to have meaningful discussions with each other prior to a scheduled MSC without animus or posturing.
Why is there a meet and confer requirement imposed by the Appeals Board starting in 2022? When MSCs were conducted in person prior to the pandemic, parties were given time on the MSC date to complete the five-page Pre-Trial Conference Statement (PTCS) and list of exhibits and witnesses. Upon completion of the PTCS for each date of injury, the parties would appear before the MSC judge who would review the PTCS and then bind the case over for a trial date and trial judge assignment. Parties would go to the calendar clerk’s office to obtain a trial date, get a trial judge assignment, and either exercise or waive a challenge of the assigned trial judge. The parties would leave the courthouse with a date certain for trial and a final assignment to a trial judge. So a meet and confer requirement “prior to the MSC” was not necessary since parties met and conferred prior to seeing the MSC judge on the date of the MSC.
As part of the “post-pandemic” remote and virtual conferences that are occurring statewide, the WCAB will not be returning to in-person MSCs in the future. Therefore, the meet and confer activities that used to occur in person on an MSC date, are now mandated to occur prior to the date of the MSC. Most judges now require the Pre-Trial Conference Statement to be filed into FileNet by the end of the date of the MSC. Counsel should be aware that documents uploaded into FileNet may not populate until 24 to 48 hours after a batch file is uploaded into EAMS by a party.
What consequences are there if parties do not meet and confer prior to an MSC? This occurs under the following circumstances that include but are not limited to:
(1) One party calls the opposing party and there is no response.
(2) One party emails the opposing party and there is no response.
(3) The parties confer via email or phone and no meaningful discussions occur to agree on facts or on what issues are in dispute, and there is little or no discussion about settlement of the case.
(4) One party does not know the identity of the opposing attorney or non-attorney hearing representative who is assigned to appear at an MSC.
MSC judges empirically know when parties have not met and conferred prior to an MSC. Many judges like to review their conference calendar prior to the date of their conference day so that there is some familiarity with the cases that will come before them. It is nice to know on each case which party filed a Declaration of Readiness To Proceed and why a DOR was filed in the first place. Remember, parties shall declare under penalty of perjury that they contacted the opposing side to have a “good faith” attempt to resolve the disputed issue prior to filing the Declaration of Readiness To Proceed. So in essence there are two required “meet and confer” requirements—one before a DOR is filed, and the other prior to an MSC.
If there is evidence that a meet and confer did not occur prior to an MSC, the judge may order the matter off calendar, continue the case to another MSC or status conference, or, for repeat offenders, impose sanctions on the party or parties who habitually fail to have a meaningful meet and confer. That being said, Rule 10745 allows a judge to change the type of hearing that was requested in a Declaration of Readiness To Proceed. An MSC judge may convert that hearing into a status conference, a priority AOE/COE conference, or continue the matter to another MSC. See Rule 10758, which allows a judge to re-designate any hearing except a trial as a status conference. Continuance of an MSC is only allowed upon a showing of good cause. See Rule 10748.
There are many non-attorney hearing representatives who are assigned to appear at MSCs, and attempts by defense counsel to contact the person assigned to appear at an MSC on behalf of the Applicant can be problematic. Non-attorney hearing representatives are held to the same standards as a licensed attorney pursuant to Title 8 Cal. Code of Regulations Section 10401(b). A supervising attorney must instruct each non-attorney hearing representative who is assigned to appear at an MSC, to contact defense counsel to initiate or respond to the meet and confer process.
Judges have wide discretion on how to handle MSC hearings and can take any reasonable action to make sure the mandate of Title 8 Cal. Code of Regulations section 10759(b) is complied with. Judges are trained to understand the mandate is to move cases forward towards resolution of disputes—either by settlement or by trial. The Mandatory Settlement Conference is where the rubber meets the road and parties are expected to have the case ready for a trial setting by the end of the MSC hearing. That means completion of the Pre-Trial Conference Statement (PTCS) for each case and listing all witnesses and proposed exhibits.
Counsel is urged to take better control over the MSC process and to comply with Rule 10759(b) by having a meaningful meet and confer in every case prior to an MSC. Counsel can start this process within a week or more before a scheduled mandatory settlement conference by reaching out to the opposing party. Here is a proposed Meet and Confer template for private use:
DATE OF MSC: _____________________________________________________
DATE(S) OF MEET AND CONFER(S): ___________________________________
FACTS AGREED TO (per Stipulations in PTCS for each alleged DOI):
FACTS IN DISPUTE (per Issues in PTCS for each alleged DOI):
PROPOSED PD RATINGS IF INJURY IS ADMITTED (per LC 5502(d)(3):
SETTLEMENT OFFER: _______________________________________________
TRIAL TO BE REQUESTED: _____ AOE/COE ____ NATURE AND EXTENT
Meeting and conferring prior to the date of a scheduled MSC is problematic at busy WCAB District Offices. In many cases, counsel does not know who is scheduled to appear at an MSC in any given case; counsel or non-attorney hearing representatives may have multiple appearances; and other logistical complications may hinder parties having a meaningful meet and confer before the scheduled date of the MSC. Despite those hindrances, judges expect the parties who are assigned to appear at an MSC to be prepared to meet and confer with the opposing party or parties, to prepare a meaningful Pre-Trial Conference Statement for each alleged date of injury, and to provide an accurate list of exhibits and names of witnesses, all by the conclusion of the MSC date.
Judges want parties to reduce the number of appearances they have on any given mandatory settlement conference date if necessary so that more time can be dedicated to the regulatory mandate to meet and confer and comply with the statutory mandate of Labor Code Section 5502(d)(3). Proper allocation of resources at law firms on both sides should be adjusted in order for all parties to comply with Rule 10759(b) preferably before the MSC date, and if necessary on the date of the MSC itself.
Judges want practitioners to understand and apply the Rules that have been in effect for almost a year and to implement the meet and confer mandate. Parties will be held to answer for not complying with Rule 10759(b) and it is time for everyone to raise the bar.
© Copyright 2022 Robert G. Rassp. All rights reserved. Reprinted with permission.